Hearst and Hearst & Ors - [2011] FamCA 470

FAMILY COURT OF AUSTRALIA

HEARST & HEARST AND ORS

[2011] FamCA 470

FAMILY LAW - COURTS AND JUDGES – Disqualification – In view of adverse comments made in relation to the credibility of the husband, whether the Court should disqualify itself from hearing and determining two further issues – Disqualification application granted in relation to the outstanding costs application, given the discretionary nature of such application – Disqualification application refused in relation to an application made by a third party, the determination of which is not dependent on matters of discretion or an assessment of the husband’s credibility.

Family Law Act 1975 (Cth)

British American Tobacco Services Ltd v Laurie (2011) 273 ALR 429
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Penfold v Penfold (1980) 144 CLR 311
Stephens & Stephens (Disqualification) [2010] FamCAFC 206

APPLICANT:

Ms Hearst

FIRST RESPONDENT:

Mr Hearst

SECOND RESPONDENT:

Ms Kent

THIRD RESPONDENT:

Ms Somers

FOURTH RESPONDENT:

Mr JH

FILE NUMBER:

SYC

5110

2008

DATE DELIVERED:

10 June 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

10 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pigot

SOLICITOR FOR THE APPLICANT:

Campbell Paton & Taylor

COUNSEL FOR THE FIRST RESPONDENT:

Ms Dalton

SOLICITOR FOR THE FIRST

RESPONDENT:

Lee Dalton & Associates

COUNSEL FOR THE SECOND & THIRD

RESPONDENTS:

Mr Messenger

SOLICITOR FOR THE SECOND & THIRD

RESPONDENTS:

Messenger & Messenger

REPRESENTATION FOR THE FOURTH RESPONDENT:

In person

Orders

That the pending applications with respect to the costs of the substantive proceedings which concluded on 11 March 2011 be adjourned to a date to be fixed before another judge.

That Mr Hearst sign a transfer of the stock horse known as Horse A being Registration No … black Australian stock horse mare to Mr JH.

That in the event of the husband failing to comply with Order 2, by 4pm this day the Registrar of the Family Court of Australia Parramatta Registry is appointed to execute such transfer pursuant to s 106A of the Family law Act 1975 (Cth).

That there be no order for costs of today.

IT IS NOTED that publication of this judgment under the pseudonym Hearst & Hearst and Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: SYC 5110 of 2008

Ms Hearst

Applicant

And

Mr Hearst

First Respondent

And

Ms Kent

Second Respondent

And

Ms Somers

Third Respondent

And

Mr JH

Fourth Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Before the Court for determination are two applications by Mr Hearst (“the husband”) for orders that the Court disqualify itself from hearing and determining two issues.
The first relates to the costs of the substantive Part VIII proceedings between the parties which were finally determined by orders made on 11 March 2011. Those orders gave effect to the primary judgment of the Court which was delivered in October 2010. The husband seeks that the Court disqualify itself from hearing and determining…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hearst and Hearst & Ors

Details

AGLC: Hearst and Hearst & Ors [2011] FamCA 470
Case: [2011] FamCA 470
Decision Date: 10 June 2011

CaseChat Overview and Summary

In the matter of *Hearst and Hearst & Ors*, Coleman J of the Family Court of Australia considered an application for disqualification of the court from determining two further issues. The dispute arose following adverse comments made by the court regarding the credibility of the husband, Mr Hearst.

The primary legal issue before the court was whether it should disqualify itself from hearing and determining an outstanding costs application and an application made by a third party. This question hinged on whether the court's prior adverse findings concerning the husband's credibility would prevent a fair and impartial determination of these subsequent matters.

Coleman J determined that disqualification was warranted in relation to the costs application. The court reasoned that costs applications are inherently discretionary, and the prior assessment of the husband's credibility would likely influence the exercise of that discretion, thus raising concerns about impartiality. However, the court refused the disqualification application concerning the third-party application. This was because the determination of that application was not dependent on discretionary matters or an assessment of the husband's credibility, meaning the court could proceed to hear it without apprehended bias. Consequently, the court ordered that the pending applications concerning the costs of the substantive proceedings be adjourned to a new judge, while the third-party application could proceed.

Orders

Orders of the court

That the pending applications with respect to the costs of the substantive proceedings which concluded on 11 March 2011 be adjourned to a date to be fixed before another judge.

That Mr Hearst sign a transfer of the stock horse known as Horse A being Registration No … black Australian stock horse mare to Mr JH.

That in the event of the husband failing to comply with Order 2, by 4pm this day the Registrar of the Family Court of Australia Parramatta Registry is appointed to execute such transfer pursuant to s 106A of the Family law Act 1975 (Cth).

That there be no order for costs of today.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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